Valuable insights to Provisional Assessment and Costs Case Management from a Regional Costs Judge

Notes taken by Nicholas Lee at the Court User Meeting on 4 November 2013 at Bristol County Court.

Provisional Assessments

Why are Provisional Assessments taking longer than 6 weeks?

Costs assessments are not given any priority when it comes to judicial listing.

Should suitability for Provisional Assessment be considered at the outset?

Provisional assessments are automatically listed without consideration by a Judge. Therefore there may be occasions where you wait for the Provisional Assessment and then learn that a Detailed Assessment would be more appropriate. In such circumstances, the listing for Detailed Assessment would be expedited.

When may a Provisional Assessment not be suitable?

If the issues are complex and require oral submissions. As an example, if the paying parties are seeking to strike out a bill or there is a question as to an entitlement to costs or scope of a costs order, that could well render the case unsuitable for Provisional Assessment.

What is Bristol County Court’s procedure for Provisional Assessment?

1. The Bill is assessed- often without the files.
2. The Judge will also summarily assess both parties costs of the assessment.
3. The Judge will not look at offers to settle until invited to do so.
4. The parties will recalculate the Bill.
5. If the parties cannot agree liability for costs of the assessment, the Court will direct written submissions limited to 2 x A4 pages. The decision will be made on paper.

What not to file?

Unless otherwise ordered, the parties should not file correspondence files. If they do, there is a risk that they could get lost. The Court does not want to store files for many months.

If it is for the parties to agree liability for costs, then it seems pointless filing the offers in a sealed envelope.

What about points of dispute and replies?

• Common sense prevails… If the Court is assessing the Bill without the files and without advocates, the submissions are limited to the points of dispute and replies.
• If you have a proper point to advance, advance it properly.
• If you have a useful reply, then advance it accordingly.
• Points of dispute and replies should be detailed and constructive.
• Grouping items together, particularly items in the document schedule, is particularly useful.
• The Judges would also welcome some room to input their decisions.

Should Replies to Points of Dispute be limited to points of principle and concessions only?

No. Regional Costs Judge: 

“I have included in the standard directions issued by Bristol County Court, and that give notice of the listing date of Provisional Assessments, the following,

2To the extent that the Receiving Party may have left blank any of its Replies in intended compliance with Costs Practice Direction 12.1, it has permission to file and serve an amended Precedent G, within 28 days of receipt of this Order, providing specific Replies to those previously left blank.  This is not to be construed as permission to otherwise amend Replies.

"A similar provision will appear with regard to listing of conventional detailed assessments.”

 
Costs Case Management

Are the Courts strict with the correct use of phases?

The Judges are trying to be lenient and are not being unnecessarily draconian.

What is their approach to Costs Budgeting?

They are not interfering with rates per se. If they feel that a particular phase is excessive, they will identify a particular sum. Say that sum was £5,000, the Court is not concerned as to whether that is 1 hour at £5,000 an hour or 5,000 hours at £1 an hour.

When should the budget be filed and served (according to Bristol County Court)?

Despite it not being expressly stated in all orders, the logical time to file and serve the Costs Budget is with the Directions Questionnaire.

What about Part 8?

Part 8 is automatically allocated to the multi-track. There will be obvious exclusions such as costs only proceedings or infant approval. There are other procedural issues in that there may not be a CMC or any Order requiring a budget.

What is the current delay for CMCs?

There is currently a two-month delay before attending the CMC. Why not try and agree the budget or certain elements of the budget? There may not be sufficient time to deal with the management of the case and the management of costs, so the more the parties can agree the better.

Who will deal with Costs Management?

Full time District Judges only.

How much time will Costs Management Conferences be allocated?

Typically 30 minutes reading and 1 hour for the hearing.

What about where proceedings were issued before 1 April 2013?

No budget required unless otherwise ordered.

What about disclosure and experts?

Ask yourself whether standard disclosure is really required. When dealing with expert evidence, identify the expert, what they will give evidence on and by when.

What about fast track cases?

The Court has a duty to manage costs. If a Costs Budget is not required, parties should revert to preparing a Costs Estimate.

Notes from Bristol County Court user meeting on 4 November 2013. Permission from District Judge Britton to disseminate this information.